Black men had been granted the right to vote in 1870 in the 15th Amendment, which said people should be allowed to vote regardless of their race or previous condition of slavery.

But soon after Reconstruction, which ended in 1877, Southern states started passing laws that imposed conditions on the right to vote, including so-called literacy tests and poll taxes, according to attorney Mark Johnson, a partner at Dentons law firm in Kansas City.

Johnson, who teaches election law at the University of Kansas School of Law, sat down with The Star at his office at 45th and Main streets to discuss the legacy of the Voting Rights Act almost 50 years later — a law that still has resonance for new U.S. citizens — and how some of its gains have eroded in the past five years.

Secretary of State Kris Kobach and election officials in Sedgwick County should welcome an audit that would compare election results reported by voting machines in that county with the paper backup that records each ballot cast on the machines. If these election officials are concerned with protecting the accuracy and integrity of Kansas elections, they should want to know for sure whether the voting machines they are using are accurately recording the votes being cast.

That’s why it’s hard to understand why the election officials are forcing a Wichita State University mathematician to go to court to obtain the paper records that would allow her to audit the performance of the voting machines.

Fewer than four hundred families are responsible for almost half the money raised in the 2016 presidential campaign, a concentration of political donors that is unprecedented in the modern era.

The vast majority of the $388 million backing presidential candidates this year is being channeled to groups that can accept unlimited contributions in support of candidates from almost any source. The speed with which such “super PACs” can raise money — sometimes bringing in tens of millions of dollars from a few businesses or individuals in a matter of days — has allowed them to build enormous campaign war chests in a fraction of the time that it would take the candidates, who are restricted in how much they can accept from a single donor.

Abrahamson and five people who voted for her at her last election as chief justice sued shortly after voters this spring approved a constitutional amendment that allows the court to elect who serves as its chief. Previously, the job went to the justice with the most seniority. Abrahamson had held the post since 1996.

In his order granting the defendants’ motion to dismiss, U.S. District Judge James Peterson said it was not the federal court’s place to decide Abrahamson’s claim of interpreting the amendment to take effect only at the end of her current term in 2019.

“Constitutional provisions are drawn with broad strokes,” Peterson wrote. “There is no requirement that a state, in restructuring its government or the powers and duties of its officials by means of a constitutional amendment, do so with super-clarity to protect the interests of the officials or voters whose interests might be impaired.

“Unless its actions are plainly unconstitutional, Wisconsin has the authority and autonomy to restructure its government without interference from the federal government.”

The opinion begins:

The Wisconsin Supreme Court, once a sterling example among state supreme courts, has hit a long rough patch, and it has become notorious for the fractiousness of its members. With that history as a backdrop, the state legislature in 2013 started the process of amending the state constitution to change the method of selecting the chief justice, from seniority to Case: 3:15-cv-00211-jdp Document #: 127 Filed: 07/31/15 Page 1 of 35 2 election by a majority of the sitting justices. Ratification of that amendment was completed on April 7, 2015, when it was approved in a state-wide referendum. The day after the referendum, then-Chief Justice Shirley Abrahamson, with five citizens who had voted for her re-election in 2009, filed this lawsuit

We will see if Justice Abrahamson appeals. If she does, I don’t expect she will have a better result higher up the food chain.

Billionaires are bankrolling the early days of the 2016 presidential campaign to an unprecedented degree, with at least 40 of the wealthiest Americans plowing $60 million into super PACs aligned with the top tier of candidates.

Acting as shadow campaigns, the political committees backing the major presidential candidates supported them with tens of millions of dollars in chartered planes, luxury hotel suites, opposition research, high-priced lawyers and more, spending reports showed Friday.

Campaign disclosures filed with the Federal Election Commission underscored just how far the candidates — particularly Jeb Bush — went in outsourcing many of their traditional campaign operations to “super PACs,” which face much looser regulation.

The super PACs, which have dominated the fund-raising landscape so far in the 2016 campaign, reported that they had raised a total of at least $245 million so far this year, with individual donations of a million dollars or more to Mr. Bush, Hillary Rodham Clinton, Senator Ted Cruz of Texas and others.

Thomas Farr, one of the state’s attorneys, said in closing arguments that the plaintiffs had not presented any evidence that the law is racially discriminatory. He said North Carolina legislators have the authority to enact changes to election law.

Schroeder asked Farr what the justification was in making the election law changes. State Republican legislators said publicly they wanted to restore public confidence in the election system and stamp out potential voter fraud.

There is no evidence of widespread in-person voter fraud in North Carolina or nationally. An expert for the plaintiffs testified that North Carolina had only two verified cases of voter fraud out of 35 million votes cast in primary and presidential elections between 2000 and 2014.

Farr pointed to public statements made by state legislators but also added that state Republican legislators had no obligation to offer justification for House Bill 589. Alexander Peters, another of the state’s attorneys, said this case was about policy changes that North Carolina legislators have the authority to make. He said those changes might cause some burdens on voters but that the law is constitutional and not racist.

Farr argued that the law put North Carolina in the mainstream with the rest of the country. How can House Bill 589 be discriminatory if a significant number of states don’t have such voting practices, such as same-day voter registration, Farr asked.

During closing arguments Friday, Judge Schroeder,who was appointed by President George W. Bush, peppered the plaintiffs’ lawyers with questions about why the repeal of extra voting opportunities that do not exist in many states would be illegal.

But he also pressed the state’s lawyers on what motivated legislators to make the sudden changes to a system that seemed to be popular and working well. “They made voting easier and that’s a good thing,” he said of the measures that were trimmed or repealed.

His ruling is not expected for many weeks and is almost certain to be appealed, perhaps as far as the Supreme Court.

The first report of Republican presidential candidate Jeb Bush’s Super PAC, made public Friday, reveals for the first time, election lawyers say, just how much the group, Right to Rise, functioned as a kind of shadow campaign for Bush.

The group shelled out $5.4 million from January through June for all the workaday line items, from travel to catering to political consulting, that have traditionally been paid for by candidates’ campaign committees.

U.S. District Judge Thomas Schroeder interrupted Daniel Donovan, one of the attorneys for the plaintiffs, several times during his two-hour closing argument, asking him pointed questions about the case.

One of Schroeder’s main questions was centered on what evidence the plaintiffs had that the law placed burdens on racial minorities. Plaintiffs have argued that blacks use same-day voter registration, early voting and out-of-precinct provisional voting at higher rates than whites and that disproportionate use is connected to socio-economic and historical conditions. For example, blacks are more likely to move and thus more likely to end up in the wrong precinct on Election Day. They also are more likely to work lower-wage jobs and might not be able to have the flexibility to get off to vote and thus may use early voting at disproportionate rates.

Schroeder asked whether these were merely conveniences and pointed out several times that other states, such as New York, don’t have many of these provisions. He said would it be a Section 2 violation if North Carolina never had these provisions at all. Would it be a Section 2 violation if they were put in place to increase access specifically to black voters, Schroeder asked.

Donovan said that would be the wrong way to look at the issue. The provisions were passed to benefit everyone but blacks use them at a disproportionate rate, and Section 2 prohibits election laws that have a disproportionately negative impact on racial minorities, he said.

Donovan also argued that it doesn’t matter what other states do because Schroeder has to base his decision on the past history and the present reality in North Carolina.

In a Winston-Salem, N.C. federal courthouse, closing arguments are taking place this morning in a hotly-contested trial over North Carolina’s restrictive voting law. The U.S. Department of Justice and civil rights groups say that the 2013 law, passed by a Republican legislature over the objections of Democrats, violates the Voting Rights Act and the Constitution. The state defends its law as necessary to prevent voter fraud and keep public confidence in the electoral process.

As the New York Times explained, “The contested measures reduced early voting days, ended same-day registration, ended out-of-precinct voting and halted the preregistration of 16- and 17-year-old high school students. These measures had been adopted in the past 15 years to increase voter participation and were disproportionately used by black, Hispanic and younger voters.”

Since the Voting Rights Act passed 50 years ago — on Aug. 6, 1965 — there have been many legal disputes over the extent of court protection for minority voting. The outcome of this one, like many cases before it, may depend upon how well murky law matches up with political science evidence.

It concludes:

Judge Schroeder could well be faced with a situation where plaintiffs have trouble proving the law will have a large discriminatory effect on African-American voters, but also ample evidence that North Carolina had no good reason antifraud or voter confidence reason for passing this law. The law was probably intended to help Republicans — who are overwhelmingly supported by white voters and not African-Americans in North Carolina — stay in office.

With this evidence and a murky legal standard, it is unclear what Judge Schroeder will do, but he was skeptical of plaintiffs’ case at an earlier stage of the case, denying a preliminary injunction against some of these practices.

Whatever Judge Schroeder decides, the North Carolina case could well end up before the Supreme Court. And if the history of the Supreme Court’s cases over 50 years of the Voting Rights Act is any guide, the fate of North Carolina’s law may depend less upon the political science evidence before the Court and more on the Justices’ ideological commitments and beliefs about the appropriate scope of voting protections for minorities.

It is tempting to think of the plaintiffs in Evenwel v. Abbott as conservatives. After all, the brainchildbehind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of theFisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice. Evenwel should be seen for what it is: not a conservative case but an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.

It concludes:

Evenwel is a case which should be equally disturbing for conservatives and liberals. For conservatives, it is a case which challenges existing precedent for no reason, undermines federalism concerns, and goes against constitutional text, history and practice. For liberals, the case looks like little more than a Republican power grab, seeking to have the Court take away discretion for states in an arena in which states should have some leeway in deciding on the appropriate means of equal representation. It forces states to draw districts under a court-mandated theory that those without the vote, including children, felons, and non-citizens, do not deserve representations in state legislatures.

This is the rare case where liberals and conservatives can unite behind the state of Texas. Texas has properly asked the Supreme Court to leave the “one person, one vote” question where it has resided for almost fifty years: with the states.

North Carolina passed its 2013 restrictive voting law just a month afterShelby. So is the change connected to is history of race discrimination? Real Clear Politics’ Sean Trende, testifying as an expert political analyst for North Carolina, noted that seven other states besides North Carolina had no same-day registration, no out-of-precinct voting, less than 17 days of early voting, no preregistration, and a photo ID requirement—all five changes that were being challenged. Many states lacked one, two or three of these voting rules. But only eight states lacked all five. That testimony led to a very interesting exchange with ACLU lawyer Dale Ho, representing the plaintiffs, on cross-examination:

Ho: Now, according to your opinion in this case, these eight states are in the mainstream; correct, Mr. Trende?

Trende: With respect to the voting practices at issue in this case, yes.

Ho: Now, it is true, is it not, Mr. Trende, that all eight of these states, with the exception of Tennessee, were at one point covered in whole or in part by Section 5 of the Voting Rights Act?

Trende: I do not know.

Ho of course was right that these seven were former preclearance states, suggesting that the vestiges of intentional racial discrimination still linger 50 years after the Voting Rights Act’s passage, something Trende did not factor into his analysis.

Under fire once again for lapses in oversight of Florida’s voter database and lax communication, Gov. Rick Scott’s top elections official says he’ll “over-communicate” in the future.

For embattled Secretary of State Ken Detzner, it’s an all-too-familiar refrain as he tries to improve his strained relationships with county election supervisors, who depend on a reliable database as they tabulate votes in Florida elections.

But most of those [super PACs] aligned with specific presidential candidates have already said how much they raised between January and the end of June. So far, they account for roughly $2 of every $3 given in the 2016 presidential race, with the vast majority of those donations aimed at helping Republicans win back the White House.

Less than 9 percent of the money given to candidate-specific super PACs so far will benefit Clinton and her rivals for the Democratic nomination, according to an Associated Press analysis. The AP compared money raised by formal presidential campaigns with what the super PACs say they plan to report having raised on Friday.

What should be clear is that the very label “dark money,” whether it can be adequately defined or not, is intended as a pejorative to skew the difficult discussion about political speech and participation, government power, and the influence of money and wealthy donors. It’s handy and catchy, so it sticks, but it is not, and is not intended to be, a neutral description. And it’s definition is indeed malleable, so that the merry regulators can use it as they please. When they think a number sounds scary, they use it, as if “dark money” were some clearly defined and measurable concept. When their own numbers are turned back on them (as in pointing out that it is a very small part of total spending), “dark money” again becomes a vague concept, in which no one can know what is lurking below the surface, like some malevolent iceberg or killer shark.

“Sometimes people say the Supreme Court is there to protect the voice of a minority… Perhaps, but over time I think most Supreme Court decisions have been accepted as consistent with the views and beliefs and commitments and ideas and hopes and dreams of the people.”

A group backing Republican John Kasich‘s presidential aspirations received $500,000 in seed money from a seemingly odd source, according to documents filed today: an obscure limited liability company in Montana.

But a Center for Public Integrity review of business filings indicates the company is linked to someone quite familiar to Kasich, the current governor of Ohio — a venture capitalist who served in Kasich’s administration.

The limited liability company, called MMWP12 LLC, made a half-million-dollar donation to the pro-Kasich New Day Independent Media Committee the day after the company formed.

Making matters murkier: MMWP12 LLC is actually controlled by another Montana-based company called K2M LLC, according to state business records.

From the uncorrected transcript of 7/28 from the North Carolina voting trial (my emphasis):

BY MS. EARLS

Q Thank you, Your Honor. I have just a couple of questions. Dr. Hofeller, in your analysis of the proximity to early voting sites, you concluded that a 5-mile range is a reasonable distance; is that correct?

A I’m sorry. I think it was 3 miles, was it not?

Q If it’s a 3-mile range, are you assuming that people will have access to a car or a motor vehicle or are you assuming that they would walk 3 miles?

A Well, I mean, some will have a motor vehicle and some won’t have a motor vehicle.

Q So —

A I know you could probably walk 3 miles. I walk 2 miles a day, and it doesn’t wear me out very much.

Q So you didn’t make any assumption either way as to whether or not people have access to motor vehicles?

The Pillar of Law Institute filed an amicus curiae (friend-of-the-court) brief with the Texas Court of Criminal Appeals in the case Cary v. Texas today, arguing that the Texas Attorney General’s Office unconstitutionally applied the state’s bribery, money laundering and organized crime statutes to what were actually campaign finance violations.

I’m one who is generally concerned about the criminalization of politics, but from my quick look I worry this would greatly expand first amendment protections for bribery.

The latest from the NC voting trial. “Closing arguments were scheduled for this afternoon, but it now appears that they won’t happen until Friday morning. U.S. District Judge Thomas Schroeder will issue a written opinion sometime later this year.”

Wisconsin Supreme Court Justice David Prosser issued an opinion Wednesday saying he did not need to step aside from cases over an investigation into Gov. Scott Walker‘s campaign even though groups spent millions of dollars to support both him and the governor.

Prosser’s decision revealed two of the people caught up in the investigation had been involved in Prosser’s 2011 re-election bid and had stressed the importance of finding donors for him.

Prosser wrote that outside spending to help him was “very valuable to my campaign” but did not rise to a level that would require him to step down from the challenge to the investigation of those groups. That’s because the expenditures were made four years ago, at a time when there was no indication they would appear before the state’s high court.

“The public ultimately decides at the ballot box who is permitted to serve on the Wisconsin Supreme Court,” Prosser wrote. “The special prosecutor seeks to prevent an elected justice from performing that service unless that unelected special prosecutor wants the elected justice to sit on the case. This is not the way the system works.”

Prosser was part of a 4-2 majority that ruled this month that the probe into Walker’s campaign must be ended and evidence prosecutors have obtained must be destroyed. It came three days after the GOP governor formally announced his bid for the presidency.

Voting rights advocates and Oklahoma officials announced today that a settlement has been reachedto provide more effective voter registration opportunities to citizens throughout the state.

This effort began last summer when the Metropolitan Tulsa Urban League, the League of Women Voters of Oklahoma and Metropolitan Tulsa, and YWCA Tulsa notified Paul Ziriax, the Secretary of the Oklahoma State Election Board, that it appeared Oklahoma’s public assistance agencies were not offering clients a meaningful opportunity to register to vote. Under the National Voter Registration Act of 1993 (NVRA), state agencies that provide public assistance must ask clients whether they want to register to vote, offer them voter registration materials, and help them complete registration forms.

The community groups said in their letter to Secretary Ziriax that the number of voter registration applications reported statewide by Oklahoma public assistance agencies had dropped 81 percent since the initial implementation of the NVRA in 1995. At the same time, the average monthly participation in the SNAP program, just one of the programs covered by the NVRA, nearly doubled. Only 61 percent of Oklahoma citizens in low-income households were registered to vote in 2012, compared to 81 percent of those in affluent households. In fieldwork investigations conducted at Oklahoma public assistance agencies on behalf of the community groups, a significant percentage of agency clients interviewed said that they received no voter registration services whatsoever when, under the NVRA, they should have….

In my contribution to the SCOTUS blog Symposium in this case, I provide reasons that the Court is unlikely, in my view, to accept the appellants’ position. But that is not the end of the case. The more interesting question is whether the Court will decide that the Constitution forbids states from basing districts on eligible voters lone and requires that total population be used (as, in fact, has been existing practice for several decades). Here is part of what I say about whether states are free to pick and choose between “voter equality” or “representational equality” in designing districts:

Remarkably, the Court has only focused on this substantive question at all in one case, Burns v. Richardson (1966), decided at the dawn of the reapportionment revolution; Burns concluded states could make either choice. Now that the issue is back before the Court nearly fifty years later, the jurisprudential issue is whether all the developments in redistricting and voting-rights law in those intervening years should lead the Court to conclude that equal protection requires a uniform understanding concerning the correct population measure that must be used. (My co-authored casebook, The Law of Democracy, asks whether “Burns survives the subsequent development of voting rights law.”) If the Court does conclude that a uniform understanding of “equality” is required, the most likely outcome is representational equality – equality of the total number of persons across districts.

The argument for a uniform understanding of “equality” is strong, as a matter of both constitutional principle and pragmatic judicial implementation of the Constitution. In the apportionment cases, the Court has spoken eloquently many times about the importance of political equality in designing districts – but equality of whom, people or voters? If the basic principle is of such constitutional magnitude, there is much force to the conclusion that the Court has an obligation to specify equality of whom, or equality with respect to what value or principle. The choice between electoral equality and representational quality is not a fine-grained technical detail of how to implement the Equal Protection Clause. That choice is a fundamental, categorical one about the essential interpretation and meaning of equal protection in the context of designing our basic democratic institutions. Does the clause require that all persons in a jurisdiction (non-eligible voters as well as voters) have roughly equal political representation? Or does it require that all eligible voters have a roughly equal voting power? Those are fundamentally different-in-kind understandings of equal protection that flow from the Court’s “one person, one vote” jurisprudence – precisely the kind of question, in other contexts, to which the Court would provide the answer.

The reason the Court gave in Burns for leaving this choice instead to state discretion was that the decision of which groups to include in the baseline for districting “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” But in the context of the Reapportionment Cases, this explanation is off-key. After all, it was the vehement position of the dissenting Justices in these cases, such as Justices Harlan and Frankfurter, that the Court should not get involved in these issues at all because to get involved was to require the Court to choose among competing theories of political representation.

The Court crossed that Rubicon when it decided that equal protection did not permit representation to be based on geographic units, such as towns and counties, and did require it to be based on equal numbers of sentient beings (people or voters). Having completely redefined the basis of political representation the Constitution requires, the Court’s reticence about not wanting to choose between competing theories of representation when it comes to voters or people rings hollow. Instead, Burns reads like a tentative, interim, and transitional decision in the early stages of working out the meaning of the Reapportionment Cases. Decided only two months after argument, Burns arose with elections imminently pending and dealt with what was only an interim districting plan; in other words, the stakes were low, the need for an immediate decision pressing.

With the much fuller development of the “one person, one vote” doctrine in the fifty years since, it is not obvious the Court will be comfortable with leaving states as much discretion to choose “equality of whom” in districting. And given the intensity of today’s political conflicts over immigration, it is not difficult to imagine those politics coming to further poison redistricting, if states are free to move back and forth between using voters or persons as the measure of district equality. Given how aware the Court is of the extreme partisan polarization of our era, and how that polarization plays out already in districting, the Justices might conclude that strong pragmatic reasons further support adoption of a uniform principle concerning district “equality.”

The courts of appeals, in the three major cases raising this issue, have all explained why representational equality is the better interpretation of the principles underlying the “one person, one vote” doctrine. But all have recognized that the issue is important and the question close. In Evenwel, this issue arose for the first time in the Court’s non-discretionary appellate jurisdiction; the Court was right to take the case, rather than summarily affirm, and to give this issue the attention it deserves. Texas, as the defendant-appellee, will only ask the Court to affirm the status quo and let Texas (and other States) continue to have discretion to choose whether to create district equality between persons or voters. Texas will succeed to at least that extent, I believe. But now that the Court will be forced to confront these issues, the Court might well conclude that it has an obligation to decide whether there is a right answer to the question under the Equal Protection Clause of “equality of whom” and that the better answer is equality of political representation for all persons.

After nearly three weeks, a federal trial on North Carolina’s election law is wrapping up, with closing arguments to begin either late this morning or early afternoon.

The trial has been closely watched in North Carolina and nationally. Critics have described House Bill 589 as the most sweeping change in election laws since the U.S. Supreme Court in June 2013 invalidated Section 5 of the Voting Rights Act of 1965. Section 5 required 40 counties in North Carolina and several other states to seek federal approval for election law changes. House Bill 589 was signed into law a little more than a month after the U.S. Supreme Court ruling.

The Justice spoke at Duke. She said this about Citizens United (via Adam Liptak):

The court’s worst blunder, she said, was its 2010 decision in Citizens United “because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

And she said this about the recent Arizona redistricting decision (via HuffPo):

The words in the Arizona case were “the legislature thereof.” What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, “No, the only way you could make law that counts for this purpose is by the legislature thereof.” We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, “That’s lawmaking.” What we had in mind is who makes the law for the state. Otherwise you’d freeze things as they existed, it would allow no room for affirmative development, no room for the voice of the people, which is what the initiative did.

A federal judge has threatened to hold the commissioner of the Internal Revenue Service in contempt of court.

The threat came Wednesday from U.S. District Court Judge Emmet Sullivan, who has been presiding over a lawsuit by the conservative group Judicial Watch and its request that the Internal Revenue Service release the emails of Lois Lerner. She headed the IRS’s Exempt Organizations division.

Sullivan ordered a status hearing Wednesday after Judicial Watch complained his earlier orders were not being followed by the Justice Department, which is defending the IRS.

The Department of Justice’s indictment of Rep. Chaka Fattah alleges Fattah’s quid-pro-quo scheme included an in-person effort to get President Barack Obama to give a lobbyist an ambassadorship.

Fattah, a powerful Pennsylvania Democrat, is a longtime ally of the president’s and a frequent visitor to the White House.

But according to the indictment, Fattah abused his relationship with the president and his staff and tried to get the lobbyist a nomination, first as an ambassador and later as a member of “a federal trade commission.”